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Exhibit 4(b)
AMENDMENT NO. 1
Dated as of November 14, 1996
AMENDMENT by and among AMSCAN INC., a corporation organized
under the laws of the State of New York (for itself and as successor by merger
to Kookaburra USA, Ltd. and Deco Paper Products, Inc.), and TRISAR INC.
(collectively, the "Borrowers" and each, individually, a "Borrower"), each of
the banks parties to the Credit Agreement (as hereinafter defined) (the "Banks")
and THE CHASE MANHATTAN BANK (successor by merger to THE CHASE MANHATTAN BANK,
N.A.), as agent for the Banks (in such capacity, together with its successors
and assigns in such capacity, the "Agent").
PRELIMINARY STATEMENTS:
A. Amscan Inc., Trisar, Inc., the Banks and the Agent have
entered into a Credit Agreement dated as of September 20, 1995 (the "Credit
Agreement"; the capitalized terms defined therein being used herein as therein
defined unless otherwise defined herein).
B. The Borrowers, the Banks and the Agent have agreed to
amend the Credit Agreement as hereinafter set forth.
SECTION 1. AMENDMENTS. The Credit Agreement is, effective
as of the date hereof and subject to the satisfaction of the conditions
precedent set forth in Section 2 hereof, hereby amended as follows:
(a) The definition of the term "Letters of
Credit" contained in Section 1.1 of the Credit Agreement is amended and restated
in full to read as follows:
"Letters of Credit" means one or more
commercial letters of credit, each with an expiration date
of up to six (6) months from the date of issue, or one or
more standby letters of credit with either (a) an
expiration date of up to twelve (12) months from the date
of issue, or (b) an evergreen provision, by virtue of which
the letter of credit shall renew annually unless the
Issuing Bank provides the beneficiary with notice of
non-renewal, issued by the Issuing Bank for the account of
any Borrower as more particularly set forth in Section
2.1(b) hereof. "Letters of Credit" shall
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include, without limitation, those Letters of Credit set
forth on Schedule 1.1 hereto.
(b) Section 2.1(b) of the Credit Agreement is
amended and restated in full to read as follows:
(b) Subject to the terms and conditions
of this Agreement, the Issuing Bank, on behalf of the
Banks, agrees for the account of any Borrower from time to
time during the period from the date hereof until the
Termination Date, to issue Letters of Credit, PROVIDED,
HOWEVER, that the aggregate amount of all L/C Credits may
not exceed at any time the lesser of (i) $10,000,000 (only
$4,000,000 of which may be standby letters of credit) or
(ii) the amount by which the Borrowing Base exceeds the
aggregate principal amount of all outstanding Loans. The
Banks shall participate in each such issuance consistent
with Section 10.16. All payments in respect of a Letter of
Credit issued by the Issuing Bank will be due and payable
in accordance with the terms of this Agreement and the L/C
Documents relating to such issuance.
Notwithstanding anything to the
contrary herein, no Letter of Credit shall have an expiry
date later than five (5) days prior to the Termination
Date.
(c) Section 7.1 of the Credit Agreement is
amended by the addition of the following new paragraph (c), and relettering the
following paragraphs accordingly:
(c) Debt of such Borrower pursuant to
guarantee agreements, but only to the extent that such Debt
is secured by a Letter of Credit issued by the Issuing Bank
pursuant to Section 2.1(b);
(d) Section 7.2 of the Credit Agreement is
amended and restated in full to read as follows:
7.2 GUARANTEES, ETC. Assume, guarantee,
endorse or otherwise be or become directly or contingently
responsible or liable, or permit any of its Subsidiaries to
assume, guarantee, endorse or otherwise be or become
directly or indirectly responsible or liable (including,
but not limited to, an agreement to purchase any
obligation, stock, assets, goods or services or to supply
or advance any funds, asset, goods or services, or an
agreement to maintain or
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cause such Person to maintain a minimum working capital or
net worth or otherwise to assure the creditors of any
Person against loss) for the obligations of any Person,
except:
(a) guarantees by endorsement of
negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business;
(b) as set forth on Schedule 5.10; and
(c) guarantees secured in whole by a
Letter of Credit issued by the Issuing Bank pursuant to
Section 2.1(b).
(e) A new Schedule 1.1 is added to the Credit
Agreement in the form of Schedule 1.1 attached hereto.
SECTION 2. CONDITIONS OF EFFECTIVENESS. This Amendment
shall become effective when, and only when, the Agent shall have received
counterparts of this Amendment duly executed by the Borrowers, the Banks and the
Agent, and Section 1 hereof shall become effective when, and only when, the
Agent shall have additionally received all of the following documents, each
document (unless otherwise indicated) being dated the date of receipt thereof by
the Agent (which date shall be the same for all such documents), in form and
substance satisfactory to the Agent and its legal counsel:
(a) Certified copies of (i) the resolutions of
the Board of Directors of each Borrower approving this Amendment and the matters
contemplated hereby and (ii) all documents evidencing other necessary corporate
action and governmental approvals, if any, with respect to this Amendment and
the matters contemplated hereby.
(b) A certificate of the Secretary or an
Assistant Secretary of each Borrower certifying the names and true signatures of
the officers of such Borrower authorized to sign this Amendment and the other
documents to be delivered hereunder.
(c) A certificate signed by a duly authorized
officer of each Borrower stating that:
(i) The representations and warranties contained
in Section 3 hereof are correct on and as of the date of
such certificate as though made on and as of such date, and
(ii) No event has occurred and is continuing
which constitutes a Default or an Event of Default.
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SECTION 3 REPRESENTATIONS AND WARRANTIES OF THE BORROWERS. Each
borrower represents and warrants as follows:
(a) Such Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction indicated at
the beginning of this Amendment.
(b) The execution, delivery and performance by such
Borrower of this Amendment are within such Borrower's corporate powers, have
been duly authorized by all necessary corporate action and do not contravene (i)
such Borrower's charter or by-laws, (ii) law or any contractual restriction
binding on or affecting such Borrower, or result in, or require, the creation or
imposition of any mortgage, deed of trust, pledge, lien, security interest or
other charge, encumbrance or preferential arrangement of any nature upon or with
respect to any of the properties now owned or hereafter acquired by such
Borrower.
(c) No authorization, approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body is
required for the due execution, delivery and performance by such Borrower of
this Amendment.
(d) This Amendment constitutes legal, valid and binding
obligation of such Borrower enforceable against such Borrower in accordance with
its terms.
(e) The Security Agreement constitutes valid and perfected
first priority security interests and liens in and to the Collateral covered
thereby enforceable against all third parties in all jurisdictions and secure
the payment of all obligations of such Borrower under the Facility Documents
(including, without limitation, L/C Credits), and the execution, delivery and
performance of this Amendment do not adversely affect the aforesaid security
interests and liens of such Security Agreement.
(g) There is no pending or threatened action or proceeding
affecting such Borrower or any of its Subsidiaries before any court,
governmental agency or arbitrator, which may materially adversely affect the
financial condition or operations of such Borrower or any Subsidiary. There is
no pending or threatened action or proceeding affecting such Borrower or any of
its Subsidiaries before any court, governmental agency or arbitrator which
purports to affect the legality, validity or enforceability of this Amendment.
(h) The covenants of the Borrowers contained in those two
certain waiver letters pertaining to the Credit Agreement, each dated as of
September 5, 1996, have been satisfied or discharged in full.
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SECTION 4. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT.
(a) Upon the effectiveness of section 1 hereof, on and
after the date hereof each reference in the Credit Agreement to "this
Agreement," "hereunder," "hereof," "herein" or words of like import, and each
reference in any Facility Documents to the Credit Agreement, shall mean and be a
reference to the Credit Agreement as amended hereby.
(b) Except as specifically amended above, the Credit
Agreement, the Notes and the other Facility Documents, shall remain in full
force and effect and are hereby ratified and confirmed. Without limiting the
generality of the foregoing, the Security Agreement and all of the Collateral
described therein do and shall continue to secure the payment of all
obligations, indebtedness and liabilities of the Borrowers to the Bank under the
Credit Agreement and the other Facility Documents (including, without
limitation, L/C Credits), as amended hereby.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of the Bank under any of the Facility Documents, nor
constitute a waiver of any provision of any of the Facility Documents.
Section 5. COSTS, EXPENSES AND TAXES. The Borrowers jointly and
severally agree to pay on demand all costs and expenses of the Agent in
connection with the preparation, execution and delivery of this Amendment,
including, without limitation, the reasonable fees and out-of-pocket expenses of
counsel for the Agent with respect thereto and with respect to advising the
agent as to its rights and responsibilities hereunder and thereunder. The
Borrowers further jointly and severally agree to pay on demand all costs and
expenses, if any (including, without limitation, reasonable counsel fees and
expenses), in connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this Amendment and the other instruments and
documents to be delivered hereunder, including, without limitation, reasonable
counsel fees and expenses in connection with the enforcement of rights under
this section 5. In addition, the Borrowers shall pay any and all stamp and other
taxes payable or determined to be payable in connection with the execution and
delivery of this Amendment, and agrees to save the Agent and the Banks harmless
from and against any and all liabilities with respect to or resulting from any
delay in paying or omission to pay such taxes.
Section 6. EXECUTION IN COUNTERPARTS. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument.
Section 7. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
Borrowers:
AMSCAN INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President
TRISAR INC.
By: /s/ Xxxx X. Xxxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxxx
Title: President
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Agent:
THE CHASE MANHATTAN BANK
(successor by merger to The Chase Manhattan
Bank, N.A.)
By: /s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx
Vice President
Banks:
THE CHASE MANHATTAN BANK
(successor by merger to The Chase Manhattan
Bank, N.A.)
By: /s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx
Vice President
FIRST UNION NATIONAL BANK (as
successor to First Fidelity Bank, N.A.)
By: /s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
Senior Vice President
FLEET BANK, N.A.
(for itself and as successor to NatWest Bank,
N.A.)
By: /s/ Xxxx Xxxxx
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Xxxx Xxxxx
Vice President
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Schedule 1.1
Letters of Credit
Issuing Bank Current
SBLC # Beneficiary Amount Expiry Date
------ ----------- ------ -----------
P-262881 The Travelers Companies $450,000 12/31/97
X-000000 Xxxx xx Xxxxxxxxxx $75,000 12/26/96
